United States v. James, Crim. No. W-74-0698.

• Decision Date: 17 November 1977
• Docket Number: Crim. No. W-74-0698.
• Citation: 440 F. Supp. 1137
• Parties: UNITED STATES of America v. Naho JAMES.
• Court: U.S. District Court — District of Maryland

440 F. Supp. 1137

UNITED STATES of America v. Naho JAMES.

Crim. No. W-74-0698.

United States District Court, D. Maryland.

November 17, 1977.

Jervis S. Finney, U. S. Atty. and William McC. Schildt, Asst. U. S. Atty., Baltimore, Md., for the District of Maryland, for plaintiff.

E. Allen Shepherd, of Upper Marlboro, Md., for defendant.

WATKINS, Senior District Judge.

Naho James noted this appeal from a judgment of conviction entered by a United States magistrate. The case arose when a United States Park Police officer arrested James and charged him with two traffic offenses¹ allegedly committed on the Suitland Parkway, which is within the special territorial jurisdiction of the United States. He was released on $100 bail and a trial date was set. He appeared for trial but requested and was granted a continuance. On the new trial date, the arresting officer appeared, although James apparently did not. The officer asked for another continuance, which was granted. After several unsuccessful attempts to locate the defendant, he was found and advised of the new trial date. Again he did not appear for trial, and a bench warrant was issued for his arrest. An additional complaint was filed charging him with failure to appear in violation of 18 U.S.C. § 3150.

Several months later, James was arrested in the District of Columbia. Following a hearing there, the case was removed to Maryland where he was advised of his rights, counsel was appointed, and bail was set at $2,500. Failing to make bail, he was incarcerated.

Trial was held before the magistrate October 22, 1974.² James was acquitted of speeding. His plea of guilty to the charge of driving without a license was accepted and he was fined $25. After pleading not guilty to the charge of failure to appear, he was tried and convicted. The magistrate imposed a sentence of one year's imprisonment, the maximum permitted, with eleven months suspended. With credit given for the time James spent in jail before trial, total time to serve was eighteen days. James then noted this appeal.³

James contends that the magistrate acted as both prosecutor and judge at the trial and thereby denied James due process of law. In his appeal memorandum, he summarizes the conduct of the trial as follows:

At the outset of the trial, Sgt. H. H. Cooper, U. S. Park Police, sought to act as the Government's prosecutor, but the defendant objected. The Court sustained the defendant's objection and took over the conduct of the Government's case. The defendant, at a later time during the trial, objected to the Court's participation in the case as prosecutor as well as Judge, but defendant's objection was overruled.

. . . . .

The magistrate actively participated in the trial of this case in asking questions of the two Government witnesses on direct examination and his cross-examination of the defendant . . ..

. . . . .

There was no representative of the Government, and . . . the Court sought to compensate for the absence of the prosecutor by asking questions of the Government's witnesses to establish the necessary elements to sustain the Government's burden of proof. In addition, the Court conducted a spirited cross-examination of the defendant in this case. The Court, at the same time, attempted to rule on the defendant's objections to certain items of evidence which the Court offered, and the Court received into evidence.

These unsupported allegations in James' unverified memorandum constitute all the information before the Court as to what actually happened at trial. No transcript was prepared. In accordance with James' written request, the proceedings were taped, but the tape recordings are totally inaudible except for a few minutes of the initial bail hearing. Responding to the absence of a record, the Government stated in its memorandum on appeal: "For the purposes of this Answering Memorandum only, the Appellee must accept the Appellant's Statement of Facts as to the conduct of the trial and defendant's objections and Magistrate Burgess's rulings with respect thereto."

The Government contends that, even if James' account of the trial is correct, he has failed to show that his conviction should be reversed. By the above-quoted statement, however, the Government appears to have reserved the right to attempt to disprove James' allegations if this Court finds that grounds for reversal exist.

The Government's argument is, in essence, that the conduct of the magistrate at trial is irrelevant. The following rationale is offered in support of this conclusion: First, James can hardly be challenging his acquittal on the speeding charge. Second, having entered a guilty plea to the charge of driving without a license, he is in no position to complain about the trial with respect to that offense. Finally, as to the bail-jumping conviction, the Government argues that this offense was established sufficiently by the record in the case, and that the magistrate was entitled to take judicial notice of its contents. Therefore, "any examination of witnesses for the Government or any cross-examination of the defendant could only have been for the purpose of exonerating the defendant with respect to the charge of failure to appear."⁴

While the Government's reasoning with respect to the traffic charges is impeccable, its argument as to the charge of failure to appear lacks merit. The statutory definition of bail-jumping,⁵ contained in 18 U.S.C. § 3150, includes willfulness as an essential element of the offense. The United States Court of Appeals for the Fourth Circuit has expanded on the type of factual showing required to establish this element. "Willfulness, like intent, can rarely be proved by direct evidence. Generally, it depends on the inferences that can reasonably be drawn from all the evidence . . .." United States v. Dorman, 496 F.2d 438, 440 (4 Cir.), cert. denied, 419 U.S. 945, 95 S.Ct. 214, 42 L.Ed.2d 168 (1974).

It is difficult to imagine a case under § 3150 in which willfulness could be proved from the record alone. In any event, the record before the Court in the case at bar casts no light on whether James' failure to appear was willful. It does not indicate why he failed to appear; it shows only that the Defendant was notified of the new trial date, but failed to present himself on the appointed day. A conviction based solely on this record would require reversal because it would not be supported by substantial evidence. It follows that the bail-jumping conviction before the Court can be affirmed only on the basis of adequate evidence adduced at a properly conducted trial. It is thus necessary to decide whether, if James' allegations are correct, the magistrate's conduct undermined the fairness of the trial.

The leading case discussing the extent to which a judge may properly perform the function of an advocate for a party at trial is Figueroa Ruiz v. Delgado, 359 F.2d 718 (1 Cir. 1966), which dealt with a procedure employed in the District Court of the Commonwealth of Puerto Rico. The Government furnished no prosecutors in that court; by statute, the judge was required to assume the trial functions which a prosecutor would normally fulfill.

Although the statute is not in all respects clear, it is agreed that the Commonwealth's witnesses take the stand at the request of the trial judge, and are interrogated by him. They are then cross-examined by counsel for the defendant. Redirect, limited to what was brought out on cross, is conducted by the judge. Thereafter, if the defendant has witnesses, or chooses to take the stand, the examination in chief is conducted by his counsel. Cross-examination is conducted by the judge, and redirect by defendant's counsel. The judge can call prosecution witnesses for the purpose of rebuttal. Thereafter, there being no jury, the judge decides the case.

Id. at 719-20 (footnote omitted). This practice, established by statute in Figueroa Ruiz, is identical to the one allegedly adopted informally by the magistrate in the instant case.

The United States Court of Appeals for the First Circuit held that this procedure violated due process. The court first rejected the Commonwealth's contention that the statute did not require the judge to act as prosecutor. Unlike the right of questioning allowed federal trial judges, the participation demanded of a district court judge under the statute was not "ancillary," but "fundamental and continuous throughout the trial. Even more important, he was primarily motivated to speak only on one side." Id. at 720. In the court's view, the simultaneous performance of two roles required the district court judge to meet the "almost impossible burden" of maintaining two mental attitudes "at considerable variance with one another." Id.⁶ This double assignment could not help but impair the impartiality — or, just as important, the appearance of impartiality — essential to a fair hearing. Id. at 722; see Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 70 S.Ct. 445, 94 L.Ed. 616 (1950) (an administrative hearing not subject to basic procedural requirements, including separation of prosecutorial and adjudicative functions, might be in "constitutional jeopardy"); cf. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (a judge who, while acting as a "one-man grand jury" pursuant to state law, charged witnesses with contempt could not preside at their subsequent contempt trial without violating due process).

Two district court decisions in the First Circuit have followed Figueroa Ruiz. In Palé De Méndez v. Aponte, 294 F.Supp. 311 (D.P.R.1969), the court simply applied the holding in Figueroa Ruiz that the district court procedure violated due process. The other case, Haley v. Troy, 338 F.Supp. 794 (D.Mass.1972), was a declaratory judgment action brought by welfare recipients against a local municipal court justice. When women welfare recipients appeared before him in any matter, the justice allegedly made a practice of...